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Death penalty repeal debated in emotional State House hearing

CONCORD — State Sen. Kevin Avard made an impassioned plea for repeal of the death penalty in New Hampshire on Monday, presenting a bill endorsed by 12 other senators at a public hearing, where law enforcement turned out in opposition.

The Nashua senator, lead sponsor of Senate Bill 593, told the Senate Judiciary Committee that his experience interviewing death row inmates who were later found innocent convinced him that the risk of killing an innocent person outweighs the deterrent value of capital punishment. (Click here to read a related column.)

“I’ve interviewed people who are innocent, but because of a prosecuting attorney withholding exculpatory evidence, the person was on death row for 11 years,” he said. “Could that happen here in New Hampshire? Can anyone guarantee that it can’t?”

Attorney Chuck Douglas of Bow, a former State Supreme Court judge and congressman who helped draft the state’s death penalty law, urged senators to defeat the measure, largely out of concern that the only man on death row in New Hampshire could see his death sentence reduced to life in prison.

The state’s death penalty has not been used since 1939, and no one was on death row for decades until Michael Addison was convicted in the murder of Manchester police officer Michael Briggs in 2008.

SB 593 would not affect Addison’s case, according to the bill’s supporters, who say it could not be applied retroactively. But Douglas challenged that notion, saying that a judge could decide differently, as has occurred in other states.

The idea that the repeal will only apply to future cases may sound appealing, said Douglas, “but every court that has ever ruled on this has said once the legislature prospectively repeals the death penalty, everyone on death row gets resentenced to life, or life without parole.”

In a March 9 advisory memo to Judiciary Committee Chair Sen. Sharon Carson, Attorney General Gordon MacDonald agrees with Douglas.

Carson asked, “can the legislature repeal the death penalty without disturbing the death sentences that have already been imposed?”

MacDonald’s answer: “Probably not.”

“No state which has abolished its death penalty has subsequently executed a death-sentenced inmate,” he writes.

Defense Attorney Steve Mirkin of Rumney, who has represented 18 death row inmates in Kentucky, said states like New Mexico have repealed their death penalty, without affecting the status of people on death row.

“It’s not automatic that non-retroactive repeal would provide relief to people on death row,” he said.

Representatives of law enforcement, including the president of the N.H. Chiefs of Police Association, the chief steward of the Manchester Police Patrolmen’s Association and president of the New Hampshire Police Association, all testified in opposition to the repeal effort.

Other lawmakers, clergy and a former inmate from Illinois who was exonerated after 11 years on death row testified in support of the measure. The question has come up in each of the past two legislative sessions. The Senate tied 12-12 on death penalty repeal in 2016 and 2014, when repeal passed the House by 225-104.

Gov. Chris Sununu has said he will veto the current death penalty repeal bill if it reaches his desk.